ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024055
Parties:
| Complainant | Respondent |
Anonymised Parties | A Supervisor | A Contract Cleaning Company |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00030466-001 | 25/08/2019 |
Date of Adjudication Hearing: 30/10/2019
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint) to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Summary of Complainant’s Case:
The complainant began working for the respondent on the March 30th 2018 although the contract of employment states that it was April 16th.
She disputes this start date and has evidence to the contrary from payslips.
Her contract stated her salary to be €28000 per year, but she submits that she was receiving payment of only €26.080 yearly.
Also, she was entitled to taxed travel expenses of €238 per month, which was part of the yearly payment.
From the beginning she used her own car for work and was not compensated for her expenses despite travelling 16,680 km for seven months period while using her own car between April 2018 until early October
She used to fill her car with petrol each week at a cost of about €50 per week.
She has never got her full amount holiday entitlement (only nine days taken).
Sometimes she had to work on weekends, which was not part of her contract, and never received any payment for extra working hours during the weekends.
The only option offered by her employer was to take off a day or two between Monday and Fridayinstead. This meant that my free days were sometimes shifted to normal working days instead of free weekends. |
Summary of Respondent’s Case:
The respondent raises a preliminary issue in relation to time limits. The complainant’s employment ended on January 1st, 2018. Her complaint was received by the WRC on August 25th, 2019, over seven and a half months later. Therefore, the complaints have not been submitted within the statutory time limits. The respondent made further submissions on the substantive complaint |
Findings and Conclusions:
The complainant could offer no explanation in relation to the delay in submitting her complaint. The test to be applied in extension of time applications under the Acts is that of ‘reasonable cause’ and not ‘exceptional circumstances’ but it remains necessary to actually demonstrate that the cause is reasonable. There is no loose, discretionary power given to Adjudicators in applying the test.
The most commonly cited dicta are those of the Labour Court in Department of Finance v IMPACT. [2005] E.L.R. 6.
In considering the criterion to be applied as to whether reasonable cause exists, the Labour Court said it was for the applicant to show that there were reasons which both explain the delay, and which afford an excuse for it. This imports a clear objective standard into the test. The Court continued:
“The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. The standard is an objective one but it must be applied to the facts known to the applicants at the material time.
While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.”
The complainant could offer no explanation as to why she delayed the submission of her complaint and therefore she has failed to meet the ‘explain and excuse’ test set out by the Court. Her complaint was therefore not made within the prescribed time limits and is not within jurisdiction. |
Decision;
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reason set out above I find complaint CA-00030466-001 is not well founded. |
Dated: 18/12/19
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Time limits |